Tuesday, 6 September 2011

“[A] huge gulf has opened up in attitudes to and understanding of gay persons between societies ... It is one of the most demanding social issues of our time,” states Lord Hope at the beginning of his speech in the case of HJ(Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. Indeed, in spite of declarations by international human rights bodies, decisions from national courts, and the reform of anti-gay legislation in many countries, sexual orientation still is an issue that provokes strong opinions and divides societies. Sexual minorities continue to be oppressed and persecuted in many parts of the world. As a result, gay people often flee their home countries and seek protection abroad.

The case HJ(Iran) and another deals with sexuality-based asylum claims and has been celebrated as a “fundamental shift in asylum law”. Indeed it represents an important achievement: The Supreme Court unanimously held that the so-called “reasonably tolerable” test is incompatible with the purposes of the 1951 Convention.

Courts – mainly in the UK – had used this test as a basis for negative asylum decisions by finding that claimants could be reasonably expected to tolerate being “discreet” about their sexual identity in order to avoid persecution. Not only have the Peers found that this test is “wrong in principle, unworkable and inconsistent with the way that article 1A(2) of the Convention has been interpreted and applied in other authorities”, but they also propose a new “approach to be followed by tribunals”.

This article describes and critically analyses the new test proposed by the Supreme Court in HJ(Iran) and another and its possible implications for future cases, putting the speeches of the Peers in the decision into perspective drawing on other relevant case law and literature.

Seeing as the German Administrative Court has recently made a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of sexual orientation in the EU Qualification Directive in the case of Kashayar Khavand v Federal Republic of Germany, where some of the questions asked are very similar to those answered by the UK Supreme Court in HJ(Iran) and another, a critical analysis of this new test will be useful in order to point to its important achievements and also its potential pitfalls and issues that require further debate in order to avoid misled applications.

It is argued that the decision makes important contributions to sexuality-based asylum cases but that it also leaves room for misinterpretations and therefore necessitates further debate. Such are the implications of distinguishing between gay people who “live openly” vs.those who conceal their sexual orientation on the one hand and the procedural difficulties of determining for which reasons a person may be concealing his or her sexual orientation are very similar to those answered by the UK Supreme Court in HJ (Iran) and another, certainly does not resolve all the issues arising for those seeking asylum on grounds of sexual orientation.

After a short description of the facts and background of the present case, the test to be applied in sexuality-based asylum cases as proposed by the Peers will be outlined. In the course of a systematic analysis critical issues will be pointed out and discussed. In the conclusion, the findings will be summarised and an outlook will provided.